U'-NION CASE NO. 97007

                                    COMPANY CASE N0. 1036324


P ARTIES TO THE DISPUTE:

 UNION PACIFIC RAILROAD COMP a\Y (Western Region)

      -and-


BROTHERHOOD OF L OCONIOTIVE EN02\,-EERS

 STATEMENT OF CLATM: Appealing tha L-PGRADE Level 2 Discipline and 30-day suspension

 of Engineer J. M. Hylinger and request the e·-pungernent of discipline assessed and pay for all lost time with all seniority and vacation runts restored unimpaired. Action taken as a result of investigation held December 16, 1996.

 OPINION OF BOARD: By letter dated December 26, 1996, Carrier issued a Notice of Discipline

 against Engineer J. N-I. Hylinger, ("Claim,:-rt"), reading in pertinent part as follows:

        "After Laving carefully con sidere_ e,idence presented at the investigation held at Portland. Oreeon, on Monday, Dece-^ber 16, 1996, 1 find the following charges have been sustained: While you -., ere employed as Engineer on the PDSEZ-27 at approximately 6:15 p.m., PT, or. No% ember 27, 1996, near MP 1.8. Albina Yard, Subdivis:on No. 861, you .'ailed :o control your units and went over the fixed derail at the.kibina Roundhouse after si---^_21disappearaance. This alleged action indicates violation of Rules 8.20. 5.3.?, 8.2 and 6.=8 of the Union Pacific Rules, effective April 10, 1994. Upgrade Assessment of Discipline After Formal Investigation Form 3 is attached.


        Therefore, effective this date, ·..-our-cord has been assessed Upgrade Discipline Level -. Your previous Up,-.ad. Level -L, plus the present assessment results in Level -1 status. Upgrade Level= disc:pline is as follows: Thirty days off work without pay and must pass necessary annual operating rules or equivalent in order to return to work. A Corrective Action Plan must be developed upon return to work.' Your 30-day sunnsion has been calculated beginmn. Monday, December ?0, 1996 and continue-_ th-ough Tuesday, Jarua-v =S, 1997."

                                            pLr$ No. 4YO

                            AWARD NO. 87 NMB CASE NO. 87 UNION CASE NO. 97007 COMPAN-Y CASE NO. 1036324 2


Careful examination of the record convinces this Board that Carrier's finding that Claimant violated Rules 8.30, 5.3.3, 8.2 and 6.28 or. :.`_e night of November 27, 1996 must be set aside due to a fatal procedural defect in handling of this matter by Carrier managers. Specifically, the System Discipline Rule, "NOTICE" Item =, is cie_ and unambiguous with respect to the manner in which the Carrier must sen'e a Notice of Investigation:


          "W·thin 10 davs of the time the appropriate company officer knew or should have known. of an alleed offense. -'.^. =ineer will be liven wrinen notice of the sneciac - ;°<_ a=airst him or'=e:. t underscoring added).

In that connection, Claimant testifiad witho'_t contradiction that CMS woke him during his lawful rest period and the crew caller wanted to -ead the notice over the phone. Claimant said he was unprepared to write anything down and asked for it to be sent U. S. Mail as the Agreement stipulated. See Transcript page S, reading _n part:


      ~4r. J. M. Hvlin_er: Well, wit en I , a> contacted by the CMS Crew Caller, he said that he had Notice

      of Investi_aecn to read to me, and it was a mile long. And I said, `Well,' I said.

      `I have no me a, n: of copying it down, you broke - - woke me up out of a sound

      ;seep.' I sai- 'I don't have a recorder.' I says, `I'm not taking any Notice of

      Invesaeation :it111 -harges, and so fords, that there's no possibility of me writing

      down everythLo that's on this -- on this, as a Notice of Investigation.' I said -

      told him to mail it to me like it's supposed to be, or - - or hand-deliver it. The

      Company had more than adequate time to hand-deliver it to me. I was on duty that

      evening, they :c,-,id have hand-delivered it to me when I was called to duty. They

      could have hand-delivered it to me when I went through Fife, Washineton, that

      night. They could have hand-delivered it to me at Argo Yard when I arrived. At

      none of those places did they ever even attempt to even deliver it to me.

      Mr. R. G. Smut: .=.nd you ma_e ao :equest of the Carrier to issue a copy of the Notice of

      ?nvesaga on. _s -hat correct?

      Mr. J. M. H,: linger: It's nor my .-°-s=onsibiliry, it's yours.


      Contacting an accused employee b_: :elephone during his rest period and attempting to read


him ale written sIai0:n-at 0I 0_:ar`es 0`-e- ;elephone a5 3 SuDple'T~L'nt ~O time1V deh':2r : 0.

                            PLJO No. 44so AWARD NO. 87 NIVIB CASE NO. 87 UNION CASE NO. 97007 CONTANY CASE NO. 1036324 3

written notice is not a fatal violation of due process. But in our considered judgement, oral or telephone notification in lieu of timely deliver, of written notice may not be substituted unilaterally by Carrier in fulfillment of its plain obligation under the above-quoted language of the System Discipline Rule. Nor are we convinced :hat this fatal procedural defect was retroactively cured by the postponement of the original hearing under circumstances which leave substantial doubt that the Local Chairman's concurrence was volrntare.

Based upon the failure of Carrier to provide proper notice in conformance with the System Discipline Rule, we shall sustain this claim without expressing or implying any opinion on its underlying merits. The Level 2 UPGRADE discipline under arbitral review in the present case was tacked onto a previous Level 4 (which had been imposed effective October 17, 1994 (after Claimant waived investigation into a charge of passing a stop signal). That reinvigorated the Level 4 status and created a new 36-month probation period, running from November 27, 1996 (under the UPGRADE retention periods in effect prior to the 1998 revisions). Since the Board has decided in favor of the Claimant in the present case. Carrier must rescind the instant Level 2 UPGRADE discipline imposed due to the November 27, 1996 incident. As a consequence, Engineer Hylinger must be made whole for time lost in the 30-day suspension beginning ivlonday, December 30. 1996 and continuing through Tuesday, January =8, 1997. In addition, his discipline status reverts back to a single Level 4 occurrence, with the 36-month probation period running from October 17, 1994October 17, 1997.

AWARD
1) Claim sustained.

 PLB ND- 4N-0 AWARD NO. 87 NMB CASE NO. 87 UNION CASE NO. 97007 COMPANY CASE NO. 1036324

 2) Carrier shall implement this -k%v and within thirty (30) days of its execution by a majority of the Board.

 Union Member

 Dana Edward Eischen, Chairman
 Dated at Spencer, New York on Mav 7. 1999
Company Member